Indiana and Syrian Refugees

Today’s commentary is an update of sorts on one that aired last November. Then, I criticized Illinois Governor Bruce Rauner for his announcement, in the wake of terrorist attacks in France, that the state would stop admitting refugees from the civil war in Syria. I noted that, although Rauner had no legal power to bar refugees from Illinois, he might try to make life difficult for them by blocking money for services.

Today’s update comes not from Illinois, but from neighboring Indiana, where Governor Mike Pence tried to do exactly that. Late in 2015, Pence ordered state agencies not to use federal grant money to pay for services for Syrian refugees, such as job training and English-language classes. To be clear, this was money the U.S. government had given to Indiana for the specific purpose of providing services to refugees.

Now, a federal judge has granted a preliminary injunction forbidding Pence and other Indiana officials to apply that policy, at least as to refugees receiving services through the specific nonprofit agency that filed the lawsuit.

Photo Credit: University of Illinois College of Law

Let’s unpack the judge’s ruling a bit. First, a preliminary injunction is an order that a judge can issue early in a case, restricting the parties’ conduct while the litigation continues. By granting the preliminary injunction, the judge was saying, in effect, “I think the challengers have a good chance of winning the lawsuit, and in the meantime the injunction would prevent harm to the agency and the refugees it serves, while doing no harm, or less harm, to Indiana.”

Okay, so the challenge is likely to win, but on what basis? Mostly, the judge focused on the U.S. Constitution’s Equal Protection Clause. Pence’s order draws distinctions among refugees based on their national origin: it denies services only for Syrian refugees. In order to justify that kind of unequal treatment, Indiana would have to show that Pence’s order was “narrowly tailored” to serve a “compelling” state interest. Even though the judge assumed that guarding against terrorism was a compelling interest, she decided that withholding services from Syrian refugees was not even close to being narrowly tailored to that purpose.

The judge also said, in passing, that Indiana would probably lose for another reason. The federal law that authorizes funds for refugees says services must be provided “without regard to … nationality.” So, Pence’s policy most likely conflicts with federal law, which would make it a dead letter.

Lawsuits are pending against similar policies in other states, including Texas, Alabama, and Pennsylvania. Meanwhile, Pence has promised that Indiana will appeal the judge’s ruling to the U.S. Court of Appeals for the Seventh Circuit. Although predicting the outcomes of lawsuits is inherently uncertain, I’ll say this much. The judges of the Seventh Circuit are level-headed folks who aren’t inclined to get carried away by momentary political concerns. I wouldn’t advise betting on the Governor’s case.

But then, the heart of Governor Pence’s policy isn’t really about being right, or even about winning the lawsuit. As I said in November when Illinois Governor Rauner spoke up about barring refugees, it’s about demagoguery. It’s about posturing to make a politician look tough, by appealing to people’s fears instead of to their generosity of spirit. As the presidential primaries are illustrating, that sort of thing isn’t going to go away, but the federal judge’s ruling struck a blow for the better angels of our natures.

I’m Sean Anderson.